Ndwene v Road Accident Fund (386/2021) [2023] ZAFSHC 49 (10 February 2023)

Ndwene v Road Accident Fund (386/2021) [2023] ZAFSHC 49 (10 February 2023)

The court accepted the plaintiff's expert evidence and actuarial calculations, finding that the plaintiff's physical limitations and lack of formal qualifications rendered him functionally unemployable or, at best, capable only of light-duty work with limited prospects. The court held that normal contingencies should apply: 5% for past pre-morbid income and 15% for future pre-morbid and post-morbid income, as supported by precedent and actuarial practice. The defendant's arguments for higher contingencies were not substantiated by evidence. The court found the plaintiff's approach reasonable and awarded damages for loss of earnings and earning capacity in the amount of R779,601.06.

Citation
[2023] ZAFSHC 49
Parties
Plaintiff: Jacob Ditabe Ndwene; Defendant: Road Accident Fund
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
10 February 2023
Case Number
386/2021
Procedural Posture
Civil Trial / Quantum Determination After Merits Conceded
Outcome
Plaintiff's claim for loss of earnings and earning capacity is upheld; damages awarded as calculated.
Judges
Berry, AJ
Legal Topics
Loss of Earning Capacity, Contingency Deductions, Quantum of Damages, Road Accident Fund Act
Delict Civil Procedure Loss of Earning Capacity Contingency Deductions Quantum of Damages Road Accident Fund Act

Case Brief

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Parties

Jacob Ditabe Ndwene

Plaintiff

Road Accident Fund

Defendant

Procedural Posture

Civil Trial / Quantum Determination After Merits Conceded

Legal Issues

  1. 1 What is the appropriate quantum for the plaintiff's loss of earnings and earning capacity resulting from the accident.
  2. 2 What contingency deductions should be applied to the calculation of past and future loss of earnings.
  3. 3 Whether the plaintiff is totally unemployable or capable of limited employment post-accident.

Ratio Decidendi

The court accepted the plaintiff's expert evidence and actuarial calculations, finding that the plaintiff's physical limitations and lack of formal qualifications rendered him functionally unemployable or, at best, capable only of light-duty work with limited prospects. The court held that normal contingencies should apply: 5% for past pre-morbid income and 15% for future pre-morbid and post-morbid income, as supported by precedent and actuarial practice. The defendant's arguments for higher contingencies were not substantiated by evidence. The court found the plaintiff's approach reasonable and awarded damages for loss of earnings and earning capacity in the amount of R779,601.06.

Court Disposition

Plaintiff's claim for loss of earnings and earning capacity is upheld; damages awarded as calculated.

Orders

  • The defendant is ordered to pay the plaintiff R779,601.06 in respect of loss of earnings and earning capacity.
  • The defendant shall pay the amount into the plaintiff's attorney's trust account.